Chapter 3Lived experience
3.1In 2021, the Australian Bureau of Statistics (ABS) published Sexual Violence-Victimisation, which reported that only 13 per cent of women reported their most recent incident of sexual assault by a male perpetrator to police.
3.2Submitters and witnesses agreed that, for multiple reasons, the vast majority of victim-survivors do not report when they have been sexually assaulted. No to Violence provided the following summary of these reasons:
Victim-survivors do not report to police for a range of reasons, including: the stigma around sexual assault, shame, self-blame, humiliation, embarrassment, fear of not being believed, unsympathetic response, lack of evidence, distrust in the justice system, lack of support from police, re‑traumatisation with re-telling their story, the length of time sexual assault matters take to be finalised in court, fear of the impact on their visa/residency status, fear of reprisal from the perpetrator and fear [of] how it may impact on any Family Law Court proceedings.
3.3Ms Angela Lynch, Executive Officer of the Secretariat for the Queensland Sexual Assault Network noted that victim-survivors are also discouraged from reporting, by knowing that their private lives and personal information will be publicly examined during any criminal trial:
…their counselling notes, their own private thoughts and feelings, can be put before the court and can be looked at by the defendant…[T]hat really is an issue for victim-survivors…[V]ictim-survivors are very aware that their lives become pretty much opened up. They can see what's happened. They have a pretty good idea about what can go on in these cases and how their medical records can be opened up, how their other records can be opened up…All of these issues play into someone's decision making because they know that they will be judged. They know that they will be judged by that.
3.4Australia’s National Research Organisation for Women’s Safety (ANROWS) added that there are additional barriers to reporting for victim-survivors from specific population groups—women with disability, people with diverse gender identities and sexualities, women from culturally and linguistically diverse (CALD) backgrounds, and First Nations women:
These barriers can include, but are not limited to, historical and cultural distrust of authorities, language barriers, geographical isolation, inaccessibility of services for women with disability, and the cultural appropriateness of services.
3.5Women With Disabilities Australia agreed that there are specific barriers for women and girls with disability:
When it comes to reporting sexual violence and assault, processes are often inaccessible, police or frontline domestic violence workers are rarely trained in how to support and communicate with women with disability and often doubt the truth of the claims, particularly when they come from women with intellectual or psychosocial impairments. When women with disability do go through the process to report sexual assault, they face further barriers in the court.
3.6Sexual Assault Services Victoria pointed out that the barriers to reporting, and experiences once sexual assaults have been reported, can undermine confidence in the law enforcement and the criminal justice systems. In turn, this affects reporting and attrition rates.
3.7This chapter examines:
law enforcement responses to reported sexual assaults;
victim-survivors’ experiences within the criminal justice system; and
actors within the law enforcement and criminal justice systems.
Law enforcement responses to reported sexual assaults
3.8Submitters and witnesses commented that many victim-survivors have poor experiences when they report sexual assaults to law enforcement personnel. MsKaren Iles from Violet Co Legal and Consulting reflected on her own experience, as follows:
…police forces in both Queensland and New South Wales [where the aggravated child sexual assault occurred] have completely, and I would say negligently, failed their public duty not only to hold rapists accountable but failed to protect subsequent girls and women from other sexual assaults from this predatory gang. Despite laws clearly defining these sexual assaults as crimes, police have now, only 19½ years after I first reported them, referred the matter to a specialist police unit in New South Wales.
3.9Mr Andrew Doherty’s complaint did not proceed past the reporting stage:
…it feels like the whole system is set up to protect the bad guys. We victims aren't just fighting our traumatic memories of being raped; we're fighting a broken and fractured legal system that is set up almost by design to fail us and to protect rapists. What happened to me can happen to anyone. Ifollowed every step, every legal process that I could. I followed it down every termination, every path. I wrote every letter that could be written to every person that could help, and here I am still. I've gotten nowhere.
3.10Ms Iles said that, in four-and-a-half years of private legal practice, none of her victim-survivor clients has ever set foot in a courtroom:
It is the absolute minority of victims who actually have any legal consequences on their perpetrator. When I say legal consequences, I mean charges. In New South Wales, nine out of 10 victims who report to police have no legal consequences for their perpetrators. That is 90 per cent of the 13 per cent who muster up the crazy courage to bother reporting to a justice system that really does not produce outcomes for victim survivors. It's the definition of insanity doing the same thing multiple times and expecting a different result, yet we persist.
3.11In relation to First Nations women, who disproportionately experience sexual violence, Women’s Legal Services Australia (WLSA) submitted:
[Northern Territory Women’s Legal Services’] clients have reported experiences of being ‘cut off’ when reporting, often being turned away, alack of interpreters and very few available female officers. Thecommunication gap that often exists between police and sexual assault victim-survivors is particularly pronounced for First Nations women. When police do respond to First Nations women’s calls for help, they can often apply gender bias along with racists myths about First Nations.
Outcomes of reporting
3.12Some stakeholders reflected on sexual assaults that are reported to police but either do not proceed past the investigation stage or do not result in criminal convictions. The National Association of Services Against Sexual Violence (NASASV) expressed the view that:
The Departments of Public Prosecutions in the various states will often choose not to prosecute as they don’t believe there is a reasonable chance of a conviction – that is, they are of the view the jury will…believe his version of events over hers. The impact is devastating to the victim as it sends a clear message that her word is not as valued as his.
3.13Ms Iles said only certain types of victim ultimately get access to justice:
Typically, victims who get through that very narrow funnel to actually have their perpetrator stand trial are typically young, stereotypically good looking, white, well and wealthy. They are the deserving victim. That is who goes before our courts...[W]hat we don't see is Aboriginal women's complaints, if Aboriginal women even choose to report to police.
3.14Ms Katherine Berney, Director of the National Women’s Safety Alliance, stated that, for sexual offences, there is a 1.7 per cent conviction rate. Further, she indicated that sentencing outcomes do not match the severity of the crime:
Within that tiny percentage, we see sentencing outcomes of community service for convicted rapists, with the primary concern of the judiciary being that the perpetrator's life is not permanently impacted.
3.15In contrast, several submitters highlighted that victim-survivors must deal with the ongoing trauma caused by the sexual assault, as well as re-traumatisation caused by pursuing redress through the criminal justice system.
3.16Western NSW Community Legal Centre and Western Women's Legal Support Service submitted that it is common for their clients to avoid engagement with the criminal justice system, due partially to the fear of additional trauma:
Clients who do engage with the legal system report finding it traumatising, humiliating and distressing. Often, they are not happy with the outcome, but are also equally unhappy and traumatised by the process they must survive, from the time of reporting until the end of the trial.
3.17TheNASASV submitted that participating in the criminal justice system often proves ‘too difficult’ for many victim-survivors, who become ‘disheartened’ and ‘part of the attrition statistics’:
Those who do continue to court frequently report that this experience is…as retraumatising as their original assault. Universally, victims report that their experience of the legal system resulted in them being minimised as mere ‘witnesses’ to violent crimes that were actually committed against them.
3.18Ms Jess Hill suggested that Australia needs to focus on what is happening from the moment victim-survivors engage with the police and the criminal justice system:
We looked at the South Africa model, which actually has the victim not just as a witness to their trial but as someone who is seen as deeply involved with prosecutors weeks out from the court date, not just the day before. They are involved in that whole process and taken through in a trauma and empathy informed way. At the moment, we brutalise people. We seem to throw up our hands as though there's no other choice.
Victim-survivors’ experiences within the criminal justice system
3.19ANROWS—and others (see above)—noted that sexual consent laws can help people to recognise sexual violence, the dynamics of which are still poorly understood in the community (see 2021 National Community Attitudes towards Violence against Women Survey, Chapter 4). Its submission highlighted that peoples’ attitudes and beliefs about sexual violence affect how they respond to victim-survivors:
Arecent ANROWS study investigated Australians' mistrust of women's reports of sexual assault and found that participants viewed allegations with a default position of mistrust, informed by an interplay of rape myths and problematic stereotypes about women…This mistrust and the underlying beliefs that drive suspicions around victims' and survivors' reports of sexual violence persist despite research that indicates that false rape allegations are extremely rare.
3.20ANROWS argued that sexual consent laws also help victim‑survivors to recognise sexual assault as a crime rather than ‘wrong but not a crime’ or ‘something that “just happens”’:
Consent laws could serve a symbolic purpose by providing victims and survivors with a reference point that clearly defines sexual violence. The introduction of consistent consent laws across Australian jurisdictions would further support this…[It would also] support improved responses to sexual violence in the criminal justice system, through clearer identification of the scope of non-consensual behaviours and an increased focus on the perpetrator.
3.21While submitters and witnesses agreed that sexual consent laws are important, they also agreed that other reforms are necessary, including those identified through victim-survivors’ experiences with the law enforcement and criminal justice systems.
The criminal court process
3.22Some stakeholders commented on the extent to which victim-survivors are retraumatised by the criminal court process. The Centre for Women’s Health Research and Australian Longitudinal Study on Women’s Health submitted:
Women who have experienced sexual assault can be re-traumatised by the legal system and often face difficulties and obstacles while navigating court proceedings, including: inadequate support, information and court preparation; societal victim-blaming myths and attitudes; and frequent legal delays.
There is a misalignment of the needs of women who have experienced sexual assault and their experiences of the legal system, with women indicating a lack of information, validation, voice, and sense of control.
3.23The NSW Aboriginal Women’s Advisory Network commented that First Nations people must feel culturally safe when engaging with the legal system:
Cultural safety requires the legal system and the professionals involved to provide services in a manner that acknowledges their history and treatment in Australia, that is respectful of their culture and beliefs and that is free from discrimination. Being free from discrimination requires conscious efforts to identify and address direct discrimination, as well as indirect discrimination born from unconscious biases within the system and its professionals against Aboriginal and Torres Strait Islander people.
3.24Ms Tosca Looby reflected that, in making Asking for it, the thing that most surprised her was how many disincentives there are for someone to make and pursue a complaint:
There are a lot of people we met who said, 'After my experience, if someone asked me if I should report it and go through the police process and take it to court if that becomes an option…I would say don't do it. I would say you're just going to be more traumatised than you are now and actually you'll come out the other side more damaged than you are now.' In my naivete, I was completely blindsided by that. I hadn't realised just how badly we dealt with sexual assault in our courts and the kind of experiences that victim survivors were having. It's not historical.
Reforms other than to sexual consent laws
3.25Some submitters and witnesses noted recent reforms aimed at improving victim-survivors’ experiences of the criminal justice system. The Law Council of Australia encouraged sexual consent law reform to be seen in a broader context, specifically:
…in the context of the constraints of the criminal trial process, recent changes to court processes, and broader options for policy reform. This may have a greater bearing on the experience of victim-survivors and, thereby, more directly address issues of under-reporting and attrition in the criminal justice system.
Information and support
3.26Mr Michael Bradley from the Grace Tame Foundation works with victim‑survivors who have been or are engaged with the criminal justice system. He said that victim-survivors do not initially understand this process:
…they usually come to [the criminal justice system] with an absolute lack of knowledge or understanding of how that system works and what it is that they're subjecting themselves to. That's one of the prime causes of the fresh trauma that they pretty much always suffer when they go through that process. It's an escalating and compounding process, as they get deeper into it, and it culminates in the experience of finding themselves in a courtroom, being aggressively cross-examined by a barrister and feeling like they are on trial. That's not something that anyone expects when they first go to the police to report that they've been raped, but that is how the system is designed…[T]hat's because the whole system is built on the fundamental principle of protecting the interests of accused people. That's fine in the general criminal law; it's just that in the context of sexual violence offences it both doesn't work and necessarily and inevitably causes drastic harm to victims-survivors.
3.27Submitters supported a range of measures designed to provide victim-survivors with more information and assistance, from the time of reporting through to the conclusion of any criminal trial. No to Violence suggested, for example, increasing awareness about available services and the reporting process, improving reporting mechanisms and court processes, expanding legal and social supports, investing in court services, and ensuring that victim-survivors have access to information prior to attending court.
3.28WLSA emphasised that victim-survivors should have access to specialist legal assistance to pursue their rights and entitlements:
Traditionally, victim-survivors have not been recognised as participants in the criminal justice system, and victims have merely been treated as witnesses for the prosecution. However, this is slowly changing and there is increasing recognition in many jurisdictions that victims have rights and entitlements and a personal stake in the criminal justice process, for example through the introduction of Victims’ Charters and additional legislative protections for victims.
3.29WLSA’s submission highlighted the various ways in which victim-survivors would find specialist legal assistance useful:
Victim-survivors often need legal assistance to engage in the criminal justice process, for example they may require assistance with drafting special witness arrangements applications, applications for ground rule hearings, victim impact statements, or applications in relation to protecting confidential records. Victim-survivors may also seek assistance with understanding their options in relation to civil litigation, financial compensation, and restorative justice. Particularly given the barriers to reporting to police, and the difficulties with successfully prosecuting sex offences, legal representatives for victim-survivors can advocate for them throughout the process and ensure that it meets their needs.
3.30At the Sydney public hearing, Ms Jarmira Borwick-Parker, Ms Julie Perkins, and Ms Josephine Rechichi gave evidence about their experience as specialist workers. This evidence strongly reinforced WLSA’s arguments.
3.31Ms Borwick-Parker, a Family and Domestic Violence Specialist, supports ‘women who are victims of domestic and family violence within the local court context’. She provided the following description of their typical experience:
…women who have experienced family, domestic and sexual violence have experienced trauma. Occasionally the court process can add to their trauma because of the following: the crowded court environment on a busy list day; the fear of running into the defendant or his family; the initial confusion as the woman enters the court building to find the safe room; the sense of feeling completely overwhelmed as she speaks with support workers, police and solicitors; the incomprehensible legal jargon; the numerous court dates as the matter is adjourned a number of times; and a significant wait if the matter does proceed to a hearing.
…Women may feel invalidated or not believed. This sense of not being believed also occurs when women are being cross-examined by the defendant's solicitor and compounds the trauma that she has already experienced.
…Women can often feel invisible in the court process….
If the matter proceeds to a hearing, women often struggle as they are required to be at court early in the morning. They have to organise to get time off work, meaning that they may have to disclose their situation to their employers. It can also be an issue when women have children and need to drop them off to school before court. Young children may need to attend court with their mother, which can also be quite overwhelming for the women…Domestic, family and sexual violence are extremely complex issues which are mirrored by the judicial proceedings that follow.
Restorative justice options
3.32The Law Council suggested that ‘consideration should be given to a broader range of policies to substantially reduce the incidence of sexual violence’, including increasing investment in restorative justice for ‘suitable’ sexual offence matters.
3.33Ms Chanel Contos from Teach Us Consent strongly supported restorative justice options. She explained that young people experience sexual violence in a social context and it can take years to realise that a sexual assault has occurred:
…we need to accept that not all victim survivors of sexual violence want to go through a reporting process in order to get justice…It is just devastating that the police and the criminal justice system is the only option for these young people. Often they want an apology and validation for their emotions and their experience. It is basically that you don't get that at all or you go through this process that is basically stacked against you.
3.34ANROWS’ Ms Padma Raman concurred:
We need alternatives. We know that especially when you are talking about young people. When you ask them what they want, they say that they want an acknowledgement, an apology and accountability and that they don't want it to happen to other people. From a broader systemic point of view, we need to be offering victim survivors other ways to achieve justice when the criminal justice system is just not delivering on it.
3.35Ms Lara Freidin from WLSA agreed but contended that it is equally important that the criminal justice system be ‘fixed’:
…it's important to recognise that the legal system, including our criminal justice system, is how we set the standard of behaviour that we tolerate in society. So making sure that we have criminal laws that say, 'This is what is appropriate conduct and this is what is not,' is really important. I don't think we should looking solely at alternatives to the criminal justice system. Weshould be trying to fix a broken system to make sure that it achieves better and more just outcomes for victims-survivors.
3.36South-East Monash Legal Service representative, Ms Ashleigh Newnham, shared that view:
We've assisted hundreds and hundreds of women who have experienced sexual assault, and there's a range of views about restorative justice. But I would say they do want the criminal justice system to work properly. They do want that, first and foremost. I think that some people within that cohort would appreciate a restorative justice model, and others wouldn't touch it with a 10-foot pole.
3.37Ms Saxon Mullins and Dr Rachael Burgin from Rape and Sexual Assault Research and Advocacy (RASARA) stated that the availability of restorative justice options should not be seen as a ‘decriminalisation of rape’. Dr Burgin cautioned:
Restorative justice feeds into [the decriminalisation of rape]. We have to be careful where the push for restorative justice comes from. Sometimes it comes from survivors themselves. That is good if that is what survivors are asking for.
3.38Similarly, Sexual Assault Services Victoria’s Ms Kathleen Maltzahn cautioned against a ‘two-track system’, where ‘for every other crime, you get a decent go…For sexual assault, you have a different process’.
3.39Ms Heather Clarke, Board Member and Secretary of NASASV highlighted that restorative justice must also be a safe and practical choice for victim-survivors:
It really starts from the premise that the accused or the person who has done the sexual harm totally recognises the harm they have done to the victim and acknowledges that they have committed a sexual assault…[E]xperience tells us that doesn't happen very often...The first step in the restorative justice process…is obviously meeting with the victim to see what—it is generally she—she wants and the person who has committed the sexual harm and seeing what their stance is. At that point, there has to be a really detailed assessment about whether they are prepared to acknowledge what they've done and the harm it has caused and then to take reparative steps to give the victim some sense of justice and healing.
3.40Most importantly, witnesses emphasised that it would be essential for each victim-survivor to choose for themselves whether or not to utilise a restorative justice option. Ms Mullins said:
…that's a really important way to phrase it…what a survivor chooses to do. The idea has been bandied about that a lower offence would make conviction rates higher. We are making the defence's job easier. We are often doing that at the expense of survivors' experiences and survivors' views of justice…[T]hat is an important thing to think [about] when we're talking about restorative justice. It is the idea of what is the survivor choosing to do.
3.41Similarly, Full Stop Australia’s Ms Emily Dale said:
I think of the needs and recovery of victim survivors. If restorative justice is to be an option for dealing with sexual violence matters, victim survivors' needs in recovery need to be centre. I think in considering that option, we need to remember that the victim survivor is someone whose agency has been taken away. To the extent that they really want to engage with that process and that is something that is going to help them on their recovery journey, that would be a great option.
Specialist sexual violence courts
3.42Full Stop Australia advised that it would be ‘really valuable to have specialist sexual violence focussed courts’. Ms Dale argued that sexual assault victim-survivors have experienced a particular type of trauma and therefore have specific needs. In Ms Dale’s view, specialist courts would enable better courtroom experiences for victim-survivors:
…there are still ongoing issues with the way the defence does cross‑examination. They weaponise victim survivors' experience of trauma against them to question their credibility and lean into harmful victim blaming myths and real rape myths. These continue to be really damaging to victim survivors today, even when a number of jurisdictions have introduced affirmative consent reforms. Perhaps if there were a specialist jurisdiction, and everyone working in that system were receiving the right kind of training, that would help address those kinds of ongoing problems.
3.43Several witnesses remarked upon the potential for specialist courts to improve victim-survivors’ experience of the criminal justice system. DrJulia Quilter, a criminal law and justice expert based at the University of Wollongong, considered that there is a role for specialist courts in this area:
…if it was possible to have specialised defence, prosecutors and judges involved in the running of these matters, it would improve things significantly, not least because the relevant law is often changing…and I think there needs to be specialisation. Having said that, I can also see that there is the potential for burnout and issues to do with having particular Crown Prosecutors only running sexual assault matters...As you are probably aware, in New Zealand they have done a pilot of judge-alone trials in relation to these kinds of areas—not all with great success…Piloting and evaluation is really important…because it is one thing to make a change, but it's another thing to evaluate how that's running, practically. Any pilot or any attempt at moving towards a specialist court needs to be properly evaluated.
3.44La Trobe University’s Dr Kirsty Duncanson acknowledged that implementing a specialist court would require considerable effort, time and money. However, Ms Clarke suggested that less costly and flexible options—such as independent sexual violence advisors or specialist lawyers for victim-survivors—could achieve the same outcomes.
3.45The NASASV added:
Currently, sexual assault counsellors try their best to support victim survivors to deal with police and courts as well as providing them with counselling. Access to Independent Sexual Violence Advisors would leave sexual violence counsellors free to focus on their primary role – providing trauma informed therapeutic support for victim survivors to deal with and recover from the impacts of their sexual assault experience.
3.46Dr Natalia Antolak-Saper agreed that it ‘would be really wonderful to see… independent legal advice for victim-survivors’. She noted that there is limited capacity for victim-survivors to engage with the legal proceedings, and suggested that there might be better ways to uphold their dignity and experience.
3.47Ms Lynch highlighted that specialist domestic violence courts have been successful in Queensland and, when asked if the Queensland Sexual Assault Network supported a similar approach for sexual violence, stated:
Well, the current approach isn't working. Let's face it. We've got a 1.7 per cent conviction rate and 13 per cent of sexual violence victims reporting. There's enormous attrition through the system. We have to do something differently. They have just evaluated and trialled an approach in New Zealand for specialist sexual violence courts, and that evaluation was quite positive. That's where we found that those findings in relation to earlier guilty pleas, victims being satisfied and also, actually, the accused being satisfied. They didn't feel like it was an unfair process.
3.48TheAttorney-General’s Department (AGD) highlighted an ongoing joint project with the Australasian Institute of Judicial Administration to review specialist approaches to managing sexual assault proceedings:
AGD is working with the Australasian Institute of Judicial Administration to examine specialised approaches to sexual violence matters. The research project will comprise a literature review into specialist approaches to managing sexual assault proceedings. The literature review will seek to identify and synthesise practice examples of specialised approaches to sexual assault, including specialist sexual assault courts, and is expected to be finalised by mid-2023.
Jury directions
3.49Most jurisdictions have a framework for the authorisation of jury directions in relation to sexual offence trials. Victoria exhaustively prescribes the bases for authorisation; New South Wales prescribes some or most circumstances where jury directions should be given; other jurisdictions substantially regulate the giving of jury directions with reference to the case law (South Australia, Western Australia, Tasmania and Queensland).
3.50The Law Council did not endorse any particular approach, noting that ‘the different conclusions have been reached by law reform commissions in light of the differing experiences in each state or territory’. Itssubmission noted:
…the overarching objective of the criminal justice system has been to evolve a balanced approach circumscribing the role of juries to ensure verdicts reflect the standards and conscience of the community while guarding against ‘uninhibited popular reaction’.
3.51In addition to this variation, Dr Quilter and Dr Luke McNamara submitted that the ‘current directions on consent tend to be weakly drafted in many jurisdictions and have the capacity to run contrary to the substantive law of consent’. They cited as examples section 292B of the Criminal Procedure Act 1986 (NSW) and paragraph 61HJ(1)(a) of the Crimes Act 1900 (NSW).
Timing and use of jury directions
3.52Submitters and witnesses expressed their support for jury directions that help clarify the law, and challenge rape myths and misconceptions. The Law Council submitted that jurors, like other members of the community, can be influenced by myths and misconceptions about sexual violence and consent:
…jury directions can play a powerful educative role by clarifying the law, and on legal standards of behaviour required in the context of sexual relations. They are an important mechanism by which such myths and misconceptions about consent can be addressed, including, for example, that physical resistance is required to demonstrate a lack of consent.
3.53Dr Duncanson and Dr Emma Henderson submitted that ‘jury directions about rape myths should be utilised before and throughout sexual offence trials, rather than only at the conclusion of a trial’, as human beings process information a certain way:
Listeners deploy implicit strategies in order to organise and make sense of complicated, disordered and emotionally challenging information. Inparticular, listeners use pre-existing schemas or narratives, triggered by the information they see or hear, to construct narratives to aid their comprehension and memory of that information. The order of information delivery is crucial to this process, because once a schema or narrative has been triggered, noncompliant information is forgotten or reconfigured to ‘fit’.
3.54Dr Duncanson and Dr Henderson elaborated that, in a conventional sexual assault trial, the jury hears a rape myth followed by its refutation in a jury direction, the problem being:
…a jury direction coming at the end of the trial is not…sufficient to undo this ordering of information – the jury have already sorted, discarded and forgotten any evidence that does not accord with their theory of the case.
3.55Dr Duncanson and Dr Henderson hypothesised that jury directions need to be given greater prominence in sexual offence trials, if they are to dispel rape myths and misconceptions:
It is possible that if used in the early stages of decision-making, at pre-trial hearings and in evidentiary rulings throughout the trial, jury directions aimed at dispelling rape myths may help prosecution and defence counsel to move away from a continued tendency to rely on myths at trial. It also seems likely that a judicial direction to the jury before the airing of evidence which is likely to have the effect of triggering rape myth schemas, would be much more likely to reduce the impact of narratives based on myths.
3.56At the public hearing in Sydney, Dr Quilter suggested that legislation must be explicit about the need for a contemporaneous jury direction, for the direction to be applied consistently.
3.57Dr Quilter and Dr Luke McNamara agreed that jury directions must be used:
…proactively and at the time of the evidence in question, rather than simply as part of the judge’s summing up to the jury at the end of the trial. Research suggests that, for maximum effect, it is preferable if judges give ‘corrective’ directions (eg that delay in complaint does not necessarily mean fabrication) at the time this suggestion is raised.
Content of jury directions
3.58In 2021, the Victorian Law Reform Commission (VLRC) examined the issue of jury directions. According to the Victorian Government, the VLRC recognised the success of reforms previously introduced by the government:
[The VLRC] recommended building on that strong foundation by, among other things, introducing new jury directions to address misconceptions about sexual violence in relation to:
an absence or presence of emotion or distress when reporting or giving evidence
a person’s appearance (including their clothing), use of drugs and alcohol, and presence at a location behaviour perceived to be flirtatious or sexual
the many different circumstances in which non-consensual sexual activity may take place
maintaining a relationship or communication with the perpetrator after non-consensual sexual activity.
3.59The Victorian Government legislated and extended the reforms recommended by the VLRC:
…to also prohibit statements that diminish the credibility of complainants because they are sex workers or have a particular sexual orientation or gender identity, and prohibit suggestions that the evidence of these complainants requires more careful scrutiny by the jury. The [Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 Act (Vic)] also introduced a new process to require judges to give directions about sexual offences at the earliest opportunity and at any time in the trial, if the judge considers there are good reasons to do so.
3.60Ms Freidin from WLSA described the Victorian legislation as having ‘a lot of really great examples of jury directions that go to the heart of the types of rape myths that we would be wanting to combat’. In particular:
…the idea that rape can [not] occur in the context of a relationship or in marriage, or the idea that just because a woman is drunk or wearing a short skirt doesn't necessarily mean that she consented. We assume that every Australian would already know these kinds of basic ideas, but we know from community attitude surveys that they don't.
Efficacy of jury directions
3.61Some stakeholders noted that it is difficult to determine the efficacy of jury directions. The Youth Affairs Council of South Australia noted 2019 research, which found that jurors struggle to understand and apply jury directions. Further, ‘there has been a high number of appeals lodged and convictions overturned on the grounds of judicial directions given during proceedings’.
3.62According to Ms Annabella Dumas, ‘there has been some debate amongst scholars, practitioners and indeed legislators, as to whether jury directions are effective at all in dispelling misconceptions’. Ms Dumas argued that much depends upon how deeply a myth is entrenched:
What is clear, is that some myths are more entrenched than others. Whilst juror directions are increasingly important, they are not a ‘panacea for correcting juror misconception’.
3.63The Tasmanian Aboriginal Legal Service (TALS) indicated that it would support ‘non‑binding model directions that form the core of directions on consent, with Judges given the flexibility to expand upon directions as they apply to each particular case’. TALS suggested that guidelines be provided on the use of any such directions at earlier opportunities, to overcome misconceptions and inaccurate narratives surrounding consent in sexual offence trials.
3.64Legal Aid NSW also identified concerns with mandatory jury directions:
We consider that mandatory, legislated jury directions are problematic and can unsettle and complicate law which has developed over many years. Inaddition, legislated jury directions may further complicate the process of explaining relevant law to a jury at the conclusion of a criminal trial, which is already a complex task. It may also make the process more open to error as weight may be given to one jury direction that is entirely irrelevant in the circumstances of the case. We consider that any jury directions in sexual assault trials should be available, but not mandatory.
Actors within the law enforcement and criminal justice systems
3.65In 2021, the VLRC expressed its view that people working in the criminal justice system should have specialist skills:
Sexual offences is a complex area to work in. To handle these matters well, people working in the criminal justice system need to understand sexual violence. They also need to understand complex laws and procedures.
3.66The VLRC noted that past reforms have helped to develop the specialist knowledge and skills needed to respond to sexual violence. However, as good practice is still not happening ‘across the board’, a specialised criminal justice workforce is needed.
3.67Many submitters and witnesses shared the view that people working with victim‑survivors of sexual assault—first responders (such as health or social workers), police officers, legal professionals, court officers and members of the judiciary—should receive specialist training, to ensure that their responses are sensitive, culturally appropriate and trauma-informed.
3.68For example, the Federation of Community Legal Services (Victoria) and South‑East Monash Legal Service supported comprehensive and ongoing training. Its submission emphasised: ‘it is essential that this entire process, from initial reporting, through to investigation and prosecution, is victim-centred, culturally safe and trauma-informed’.
3.69Similarly, No to Violence submitted:
Training has to be ongoing and focus on the gendered nature of sexual violence; correcting common misconceptions about sexual assault and demonstrating the impact of these myths on access to justice; the role of sexual violence within [domestic and family violence]; the cumulative impact of all forms of domestic, family and sexual violence; and systems abuse tactics commonly employed by perpetrators. Such training should take an intersectional and pro‑feminist approach, specifically identifying the ways in which gender, race, visa status/residency, employment, and geographic location influence a person’s experience of sexual assault and of the criminal justice system.
State and territory police
3.70State and territory police are often victim‑survivors’ first point of contact with the criminal justice system. Consent Labs argued that it is ‘imperative that they are equipped to receive the information and evidence and respond in a trauma‑informed way. This will require specialised training that is both up‑to‑date and evidence based’.
3.71The National Women’s Safety Alliance and Teach Us Consent expressed their concerns about misogyny within police forces, referencing the 2022 Inquiry into Queensland Police Service responses to domestic and family violence:
The Commission of Inquiry found that misogyny was an entrenched problem in the service and that in some cases, the values, attitudes and ‘general distrust of women’ held by serving Queensland police officers, made a discernible impact on their response to domestic and family violence…The institutional failings of the Queensland Police Service are broadly representative of the immense cultural and workplace burdens that must be overcome if legislative reform is to have a meaningful impact on the lives of survivors of gender-based violence.
3.72To address unhelpful beliefs and attitudes, Dr Burgin from RASARA supported investment in policing practices, and No to Violence’s Chief Executive Officer, Ms Jacqui Watt, agreed that working with police forces to change police culture
is absolutely essential:
There's still this thing that women are making it up—there are still the myths about that story—whereas, in fact, we know that most women don't even report it, and those who do often have a pretty horrendous process of trying to get to court, and then the level of conviction is very low. 'Women are making it up.' 'It wasn't that bad.' 'Well, she went back to his flat with him, so what did she expect?' We hear all this. This is endemic…[T]he police in Victoria are actually getting a lot better…[S]ome really advanced training is taking place.
Criminal justice system
3.73WLSA commented on victim-survivors’ experiences at court, as follows:
Judicial officers and court staff are often not aware of the impacts of court proceedings and process on victim-survivors. For example, victims report that their court experience was “…disrespectful of their dignity as human beings” and that they found the process “humiliating”, “brutal, abrupt and traumatising”, “aggressive and insensitive” and “damaging and gruelling”. Women’s Legal Services regularly hear concerns from clients about having to wait in common areas near the perpetrator (particularly in the lower courts or in regional areas) and needing to request a screen in court to block‑out the perpetrator (which should be standard practice). Clients are also often concerned about how they will be treated during cross‑examination, particularly given that it is well-known how victim‑survivors are often treated by defence counsel, and that judges will often be slow to interject or respond to aggressive behaviour.
3.74Several submitters and witnesses focussed upon the courtroom behaviour of legal representatives. Dr Duncanson and Dr Henderson detailed their research findings on how barristers think and act in sexual offence trials. Their research revealed: ‘a persistent impediment to achieving justice for adult sexual offence complainants is the implicit belief in rape myths held by both defence and prosecuting barristers’.
3.75According to Dr Duncanson and Dr Henderson’s research, rape myth beliefs are extensively held by barristers and used either deliberately or subconsciously at trial:
…we found evidence of widely held rape myth acceptance and the extensive use of rape myths at trials. Many of the barristers we interviewed struggled to accurately define ‘rape myth’ or explain what might constitute a rape myth. Most barrister participants articulated rape myths during the interviews without awareness that they were doing so. Several described implementing rape myths as [a] strategy during trials and several reported witnessing rape myths used by other barristers during trials…We found that none of the barristers we interviewed had received training, specialised education or professional development designed to counter rape myths.
3.76In addition to the barrister interview research, Dr Duncanson and Dr Henderson surveyed criminal law teaching staff at all 32 accredited law schools across Australia. This research found that the amount of teaching time dedicated to sexual offences has declined over the past 20 years. The same has occurred for critical content in recent years:
Our findings indicate that knowledge about sexual offences held by most graduates of Australian law schools is reliant on self-directed learning… Generally, it appears that students are not adequately supported to learn about sexual violence or critiques of sexual offence law that might counter rape myth belief. Additionally, the capacity of teaching staff to develop curriculum that might support safe (non-triggering) learning about sexual offences and sexual violence is limited by time constraints, workload issues and research focused bench marking. This means that Australian law graduates are provided with minimal knowledge about sexual offences and sexual violence during their law school education. This enables students to graduate and pursue work as barristers with unchallenged, commonly held rape myths [beliefs].
3.77Ms Gabrielle Bashir SC, Member of the National Criminal Law Committee of the Law Council, advised that there are laws and rules that apply to members of the legal profession during the cross-examination of witnesses:
There is a national uniform law that applies to lawyers and there are Barristers' Rules that apply to all lawyers. The paramount duty is to the court. There is certainly a duty to the client, but the paramount duty is to the court. There are also rules there that do apply to when particular matters can be put to a witness…Then there is the Evidence Act, which applies in both New South Wales and Victoria….There are prohibitions there on harassing, bullying, intimidatory, and humiliating questions.
3.78Mr Michael Stanton, President of Liberty Victoria acknowledged that there are ‘really troubling examples of cross-examination’. However, he maintained that there has been a cultural shift within the profession, driven by the judiciary:
I can safely say that in front of many, if not most, judges in the County Court of Victoria, if one was to engage in that kind of belittling victim-blaming cross-examination it would be shut down in a heartbeat...There has been a real focus on trying to stamp that out. There is now improved training in relation to barristers who appear in these matters.
3.79Law Council President Mr Luke Murphy advised that, over the past five years, the peak body has undertaken some initiatives to increase sexual violence awareness within the profession. In addition, the Law Council has recently commenced discussions on the review of the current framework around continuing professional education.
3.80In relation to the judiciary, WLSA’s Ms Freidin said ‘there's not a lot of public information about what training is given to judges’. Dr Quilter suggested that the Judicial Commission might offer suitable training but it would depend upon the focus and speakers for each conference.
Australian government response
3.81Stakeholders expressed views about how governments should support and encourage people working in law enforcement and the criminal justice systems, to develop and implement specialist knowledge and skills around sexual offending and victim-survivors.
3.82The Australian government’s response in a number of key areas is discussed in the following sections.
Justice sector education and training package
3.83The AGD advised that the Australian government has committed $12.6 million over five years from 2022–23 for the delivery of ‘family, domestic and sexual violence education and training for frontline workers, health professionals and the justice sector’.
3.84The justice sector will be provided with an education and training package that will include:
a foundational education resource on sexual assault myths and misconceptions;
a judicial officer training package on sexual assault myths, misconceptions and drivers; and
a national conference for the judiciary on the nature and impacts of sexual assault.
3.85The AGD submitted:
By equipping key members of the workforce in the justice system with a better understanding of the experiences of victims and survivors and how to adopt trauma-informed practice, these activities aim to bolster the criminal justice system's capability to respond to sexual violence, protect victims and survivors from the risk of further trauma, and improve offender accountability.
Law enforcement national training package
3.86In relation to law enforcement, the Australian government is providing $4.1million over four years from 2022–23, to enhance responses to family, domestic and sexual violence through the development and delivery of a national training package. The package will include training on culturally safe policing responses and embedding trauma-informed models of response to minimise re‑traumatisation when engaging with victim-survivors.
3.87At 2023–24 Budget Estimates, a departmental representative advised that the AGD is currently scoping out the four-year measure:
We'll be doing a procurement process to identify a provider to work with us to develop the training. We're also consulting and working closely with state and territory police, and there will be, ultimately, consultation with the sector and the public.
3.88AGD noted also that the recently formed Police Ministers Council has now met twice and agreed to a standing agenda item on domestic, family and sexual violence.
Specialist legal services for victim-survivors
3.89The Australian government has committed $8.4 million over three years from 2023–24 to pilot a new legal service model, which aims to provide victim‑survivors with greater access to specialised and trauma-informed legal services, tosupport their recovery and engagement with the criminal justice system.
3.90The AGD advised that the pilot model might involve co-locating legal services with other support services, such as health and counselling services. However, the pilot is still in the design phase:
The design and operation of the service model (including service providers) and pilot locations will be determined following consultations with states and territories, victim and survivor advocates, and legal service providers. A public consultation process is expected to commence in March 2023.
Alternative reporting mechanisms
3.91The AGD advised that, under the SCAG Work Plan Priority 3 (see Chapter 1), the Australian government has provided $2.1 million to conduct a scoping study on alternative reporting mechanisms for sexual assault:
This scoping study will explore alternative reporting mechanisms for victims and survivors who may not wish to engage directly with police or formal criminal justice processes, and will seek to identify best practice models that empower victims and survivors. The study is expected to be finalised by mid-2024.
3.92At the 2023–24 Budget Estimates, the AGD advised that the scoping study will examine ‘what the Commonwealth can do in this space, so looking at best practice approaches and examining the existing models that are already operating across Australia’. Departmental officers noted that there are a couple of models to examine, following which a report will be provided to government.
Australian Law Reform Commission review of criminal justice responses
3.93On 1 May 2023, the Attorney-General, the Hon Mark Dreyfus KC MP, announced that the Australian government is investing $14.7 million to strengthen criminal justice responses to sexual assault, and prevent further harm to victim‑survivors. He stated:
Seeking justice should not add to the trauma experienced by victims and survivors. Nor should they be forced to navigate different legal processes and face different justice outcomes based on which state or territory they live in...We must give victims and survivors confidence that the justice system will deliver equitable and consistent outcomes, while minimising the risk of re-traumatisation through the justice process.
3.94The $14.7 million funding will be divided between two initiatives:
$6.5 million will be invested over four years to work with the states and territories to strengthen and harmonise sexual assault and consent laws, and improve criminal justice responses for victim-survivors; and
$8.2 million will be made available through to 2026–27 to design, deliver and evaluate multiple small-scale trials of primary prevention and early intervention concepts for the prevention of sexual harm and violence.
3.95The first initiative—to strengthen and harmonise certain criminal laws—comprises a number of measures:
establishment of an Australian Law Reform Commission (ALRC) review into justice responses to sexual violence, with a focus on law reform proposals to strengthen sexual assault laws, and improve the outcomes and experiences of victim-survivors in the justice system;
hosting of a ministerial-level roundtable on addressing sexual violence, bringing together victim-survivors, the service and advocacy sectors, other experts and state and territory ministers to drive nationwide, cross-sector collaboration and inform the terms of the ALRC review;
convening of an Expert Advisory Group to support the ALRC review and advise government on implementation of its recommendations, ensuring the voices of victim-survivors are centred in justice responses to sexual violence; and
driving nationwide efforts to strengthen criminal justice responses to sexual assault, including implementing the Standing Council of Attorneys-General Work Plan to Strengthen Criminal Justice Responses to Sexual Assault 2022–2027 (see Chapter 1).
3.96AGD representatives informed the Senate Legal and Constitutional Affairs Legislation Committee that the ministerial-level roundtable is expected to convene in the second half of 2023. The ALRC would then be a tasked with a 12‑month inquiry (to commence later in 2023).